Abstract
Revocation of order freeing children for adoption
In the Matter of C and D (Children) and the Adoption (Northern Ireland) Order 1987
The High Court O’Hara J
28 April 2016
This was an appeal from a decision of the Family Centre Recorder in 2015 dismissing an application made by the children’s mother (the father had no involvement) under Article 20 of the 1987 Order to revoke freeing orders issued in 2011 in respect of her children (C aged eight and D aged seven) who had been placed for adoption in 2012; a third child, aged five, lived with the mother in a stable, caring environment. In 2013 freeing orders had been made to which the mother neither consented nor challenged. Adoption proceedings had been delayed due to issues between the prospective adopters and the Trust, but were issued after the Recorder’s decision and were then stayed pending the outcome of this case. The Recorder had found that while more than 12 months had passed since the freeing orders were made, the children were placed with a couple for adoption, and accordingly he held that he did not have jurisdiction to hear the application.
O’Hara J began by fully stating Article 20, which provides for the revocation of freeing orders on application by a ‘former parent’ if: 12 months had elapsed since the making of the freeing order; no adoption order had been granted; and the child did not have his home with a person with whom he had been placed for adoption. He noted that the mother’s appeal was based on wider grounds than were put before the Recorder. She relied on the inherent jurisdiction of the High Court. She argued that the 1987 Order had to be read in conjunction with Article 8(2) of the ECHR, and for present purposes the 1987 Order was incompatible with it. On this matter, O’Hara J received arguments from the relevant Trust, the Department and the Attorney General. He pointed out that ‘the parties reached a common conclusion … they agreed that I should interpret Article 20 so as to ensure that it does not have the effect of contravening Article 8(2) ECHR and that if I did so I would have jurisdiction to hear the application to revoke the freeing orders on its merits’.
Statutory framework
O’Hara J fully stated the ‘welfare principle’ in Article 9 of the 1987 Order, and referred also to Articles 13 and 18, adding that ‘accordingly, the most important (but not the only) consideration for me is the welfare of these two children’. Turning to Article 20, he noted that: under para (1), the requirement was for 12 months to have elapsed since the freeing order, no adoption order being made and the child was not living with a person with whom he has been placed for adoption; under para (2), if a revocation application is pending, an adoption placement cannot be made without leave of the court; under paras (4) and (5), if a revocation application is dismissed the birth parents are not entitled to apply again without leave of the court.
Submissions: for the mother
It was submitted that a strict interpretation of Article 20(1) would mean that so long as the child was placed with prospective adopters no application for revocation could succeed, no matter how much time had passed. This would be contrary to the overall scheme of the legislation, which is to protect children while still recognising that parents retain some level of rights even if those rights are limited. The draconian nature of freeing orders has been repeatedly emphasised, so the court should not allow them to go unchallenged when it is appropriate to do so. This point was given additional weight by the recognition in Article 8 ECHR of the right to family life of parents and children.
Attention was drawn to examples of how courts have approached issues under similar, though not identical, statutory provisions in England and Wales. In Re G
1
the House of Lords had to decide what to do in circumstances where the revocation of a freeing order, while justified because the placement had broken down, could lead to a child being returned to his mother but outside the ambit of any control, such as a care order which had been discharged by the making of the freeing order. It was held that despite the absence of any express statutory power to do so, the appropriate course would be to revoke the freeing order but make this conditional upon any necessary consequential orders under the Children Act ‘or under its inherent jurisdiction or in some other way’.
2
That route was followed in this jurisdiction by Gillen J in Re K, S and G,
3
who revoked freeing orders because it was clear that no placements for the adoption of three children could be found, but immediately granted orders under the Children (Northern Ireland) Order 1995 to provide an alternative way forward for the children. In Re C
4
Wall J revoked a freeing order under the inherent jurisdiction of the court in circumstances where there was no prospect of an adoption but there was no parent or local authority who could apply for revocation. In Re J
5
Black J revoked a freeing order on the application of a local authority (not a parent) and after only six (not 12) months because it was already clear that the boy in question was never going to be adopted but needed a foster placement instead. She stated at p.66: … in the particular circumstances of this case J’s interest would be likely to be harmed if there was no power to revoke the freeing order made in relation to him. This cannot realistically be done without reliance on the inherent jurisdiction … in my judgment it is open to me to exercise the inherent jurisdiction to supplement the statutory powers and thereby protect J.
O’Hara J considered that the effect of the above submission was that he should limit the interpretation of Article 20(1)(b) so that children cannot be considered to be placed for adoption on an indefinite basis. Once a period of time has passed (probably but not necessarily more than 12 months) the courts should be willing to entertain on their merits applications to revoke freeing orders. Alternatively, the court should exercise its inherent jurisdiction to consider revoking the freeing order because the purpose of Article 20(1) has not been realised – either course being compatible with the recognition of family life in Article 8 of the ECHR. In a departure from the Trust’s position before the Recorder, it was suggested that consideration be given as to whether it would be legitimate to read the 12 months time limit in Article 20(1)(a) into Article 20(1)(b), thereby allowing a revocation challenge after 12 months even if a child was still in an adoptive placement. The significance of the decision in Re G was also recognised, to the effect that the provisions of the adoption order should be considered alongside those of the children order. O’Hara J noted that while the Trust opposed the application made by the birth mother for revocation of the freeing orders, it did recognise that more than two-and-a-half years had elapsed before the prospective adopters lodged an adoption application, so the court would now be asked to make adoption orders on the basis of the existing freeing orders and the dispensing of parental consent in 2013.
Submissions: for the Department
It was contended that Article 20(1)(b) was not unlawful, was entirely compatible with Article 8 ECHR and did not operate as a ‘complete bar’ to all applications for revocation when a child has been placed for adoption, irrespective of the circumstances of any given case. Instead it was suggested that it is subject to an implied ‘reasonable time’ requirement, meaning that a child cannot be considered to be ‘placed for adoption’ indefinitely. Further, irrespective of the interpretation of Article 20, the court retains its ability to entertain an application for revocation under its inherent jurisdiction, as is clear from various authorities including those already cited. The following points were made:
Substantial delay in the adoption process (after children have been placed with prospective adopters) may impact on the status/quality of a placement for adoption but the extent of any such impact would be dependent upon the specific facts of each case. Article 20(1)(b), properly construed, does not operate to create a complete bar to applying for revocation simply because it is contended (in opposition to such an application) that the child continues to be placed for adoption. Article 20(1)(b) is subject to an ‘implied reasonable time requirement’. It was emphasised that ‘the Department does not endorse a specific time limit’. What is ‘reasonable’ will vary with the circumstances of each case, but it will be relatively rare for the reasonable time requirement to be breached so as to render a ‘placement for adoption’ not a placement for adoption.
Submissions: for the Attorney General
He agreed with the other parties that the appeal should be allowed, with the result that the applications to revoke the freeing orders would be heard on their merits. His submissions were:
Article 20 can and must be read so as to conform with the requirements of Article 8(2) ECHR. Simply reading an implied reasonable time requirement into Article 20 ‘would introduce a lack of legal certainty’. Therefore, the most straightforward and effective means of making Article 20 compliant with Article 8(2) would be to read 1(a) and 1(b) as disjunctive or to replace the ‘and’ between them with ‘or’. The result would be that an application to revoke a freeing order could be made after 12 months either if there had been no adoption or if the child did not have his home with a person with whom he had been placed for adoption. This is not a case in which the inherent jurisdiction of the court can be invoked to cure any shortcomings in the 1987 Order. Adoption is unknown to the common law and is entirely a statutory institution … Insofar as some particle of the parens patriae jurisdiction may be invoked, two principles may be recalled: the prerogative power yields to statute; and the constitutional allocation of transferred prerogative power by section 23(2) of the Northern Ireland Act 1998.
On the issue of inherent jurisdiction the Attorney General submitted:
Conclusions
O’Hara J agreed with the parties that he should hear the application to discharge the two freeing orders on its merits in the circumstances of this case. Specifically, he should do so because no application for adoption orders had been made more than two years after the freeing orders were made and nearly three years after the children had been placed with the prospective adopters. Whether the best interests of the children still lay in adoption would have to be explored at a merits hearing and may well do so notwithstanding the mother’s ability to raise and care for her youngest child. In his view: The problem with Article 20(1) as it stands is that in a rare case such as the present it can prevent a revocation application indefinitely, even if the child has not been adopted, provided that the child has been placed for adoption. It seems to me that simply cannot be right. If there has been no adoption after a period of time it must be appropriate to allow a birth parent to apply to revoke the freeing order. To do otherwise would be to breach the Article 8(2) rights of the parent. Accordingly I believe it to be compatible with Article 8(2) ECHR to read into Article 20(1)(b) a proviso that even if a child has a home with a person with whom he has been placed for adoption, a revocation application may be brought at a point 12 months after the freeing order was made. If any such application by a birth parent was unsuccessful, the provisions of Article 20(4) and (5) would limit the opportunity to make any further applications. I do not accept the Attorney General’s submission on this aspect of the case. His approach was premised on the correct assertion that adoption is unknown to the common law. However, it simply does not follow from this that the High Court has no inherent jurisdiction to exercise. The Attorney’s submission does not deal with the cases which were cited to me which show the inherent jurisdiction being exercised repeatedly … when the rights and interests of children are not sufficiently or properly protected by statute, the High Court can and should intervene to achieve those ends. That is what has happened in cases such as Re J and it should similarly happen in Northern Ireland if necessary. A decision whether or not to dispense with the agreement of a parent has to be taken on the basis of all the circumstances as they exist at the date of the application. Thereafter circumstances may change … in the changed circumstances, it may not be in any way unreasonable for the parent at that later date to withhold his agreement to the adoption … parental agreement is only to be dispensed with, whether on the making of an adoption order or on the making of a freeing order, in the light of the reasonableness of the parent’s conduct as at that date … it would to my mind be very strange if, a freeing order having been correctly made to facilitate a pending adoption, it was incapable of being revoked when adoption ceases to be an immediate prospect save in cases where the parent whose rights have been dispensed with under the freeing order is capable of looking after the child and having unfettered control.
Held
Appeal to proceed to a full hearing.
Comment
Invoking the parental revocation right after the issue of a freeing order and following an adoption placement has always been an area of uncertainty. Striking a proper balance between the rights of parent, child and prospective adopters – in the context of the developing bonds that a loving placement sustained for 12 months or more inevitably produces – is obviously immensely difficult. But it must be right, in the circumstances provided for in the legislation of both jurisdictions, that a parent would have a final opportunity to show that she or he is now in a position to undertake responsibility for ensuring the welfare of their child. Anything less, at that stage and in those circumstances, would surely be incompatible with Article 8 of the ECHR.